This opinion is intended to define the unfettered powers granted the President of the Republic of Liberia under the 1986 Constitution which includes the power and authority to appoint at will, and dismiss without cause at his/her pleasure, as she/he deems fit, all public officials where it is constitutionally applicable.
Article 50 of the 1986 Constitution clearly and exclusively vests in the President the executive power and authority of the Liberian State. The power and authority so exclusively defined, when combining with Article 56 and read together, imposes upon the President the unrestricted power to preside and administer the Republic of Liberia without any hindrance, as sovereign Head of State, Head of Government and Commander-in-chief of the Armed Forces of Liberia.
There is no Tenure Position for Public Officials Under Article 56 of the 1986 Constitution of Liberia.
Article 50 of the 1986 Constitution states: “The Executive Power of the Republic shall be vested in the President who shall be Head of State, Head of Government and Commander-in-Chief of the Armed Forces of Liberia. The president shall be elected by the universal adult suffrage of registered voters in the Republic and shall hold office for a term of six years commencing at noon on the third working Monday in January of the year immediately following the elections. No person shall serve as President for more than two terms;” and Article 56(a) states:” All cabinet ministers, deputy and assistant cabinet ministers, ambassadors, ministers and consuls, superintendents of counties and other government officials, both military and civilian, appointed by the President pursuant to this Constitution shall hold their offices at the pleasure of the President.”
The President as Head of State he/she is the embodiment of the executive power of the Liberian State (Article 50); and as Head of Government, he/she is the Chief Administrator of the Liberian Government (Article 56). Therefore, his/her power to administer the Liberian State as Head of Government under Article 50 of the 1986 Constitution cannot be restrained or prohibited by a legislative enactment or any statutory provision. In fact, the President has the exclusive executive constitutional power under Article 56 to appoint all public officials where it is constitutionally applicable. There is no or can be no hindrance whether by an act of the National Legislature or any other statutory arrangement to restrict the exercise of such power.
The reason is that there is an elementary principle of constitutional law that instructs that where there exists a conflict between the application of a statutory provision and the 1986 Constitution, the latter prevails. That said, it is inconceivable as to how there can be or why there should exist a tenure position beyond the constitutional contemplation of Article 56 of the 1986 Constitution especially beyond the lifespan of the Appointing Authority.
Article 56(a) of the 1986 Constitution is plain both in its interpretation and application and requires no interoperation because it expressly states: “All cabinet ministers, deputy and assistant cabinet ministers, ambassadors, ministers and consuls, superintendents of counties and other government officials, both military and civilian, appointed by the President pursuant to this Constitution shall hold their offices at the pleasure of the President.”
The constitutional phrase: “…and other government officials, both military and civilian, appointed by the President pursuant to this Constitution shall hold their offices at the pleasure of the President” includes all public officials and heads of government agencies, whether with tenure positions statutorily granted them or not. This means the heads of the General Auditing Commission(GAC), Liberia Ant-Corruption Commission (LACC), Liberia Revenue Authority (LRA) and other institutions created by means of legislative enactments and appointed by the former President, Ellen Johnson are covered under the constitutional phrase of “…and other government officials, both military and civilian…” The objective of creating a ‘pleasure power’ for the President to exercise under Article 56 of the 1986 Constitution and to dismiss any public official at will was intended to avert a scenario of a “divided or parallel loyalty” within the Liberian government.
Again, Merriam-Webster online dictionary defines a ‘divided loyalty’ as a feeling of strong support for opposing groups or ideas.” A government in which there are people with divided loyalty is most likely to crumble. What other evidence do we need to prove that after a rather bitter election in October and December 2017, there are those who still believe that the CDC-led Government should not have won the elections?
Lest we forget, in business, as in constitutional law, an appointment in government takes the form of a letter patent or power of attorney to perform some acts on behalf of the Appointing Authority or the principal. The appointee under Article 56 of the 1986 Constitution who happens to be the cabinet minister(s) becomes the agent, and when the principal who appoints the agent ceases to exist by reason of death, resignation or the expiration of its constitutional tenure, as in the case of President Ellen Johnson Sirleaf, the power and authority of the agent acting under or within the scope of the principal also ceases to exist.
To aptly put, the appointment by the President of public officials can be likened to a lessor and lessee relationship. If the lessee executes a lease agreement with the lessor and under the agreement the lessee is given the opportunity or power to sublease the property to a third party, as it is with the Liberian presidency where the administrative power granted the President under Article 50 as the administrative Head of the Government is so vast, is delegated to other officials of the government, the lifespan of the sublease agreement cannot exceed or extend beyond the lifespan of the original lease agreement between the lessor and the lessee.
The second presidential term enjoyed by President Sirleaf was a constitutional optional period granted under Article 50 and was conditioned upon service for good cause. The constitutional delegation of her administrative power as Head of the Government to cabinet ministers and other public officials was intended to extend beyond her presidential tenure to the extent where those appointed by her will still be holding the respective offices even unto this day. This exercise is ultra vires to the intent and spirit as well as the letter of Article 56 of the 1986 Constitution.
Be that as it may, all public officials heading the LACC, GAC, LRA and the likes cannot and should be actively involved with the day to day operations of the CDC-led Liberian Government as public officials unless REAPPOINTED by the President. They were appointed by President Sirleaf and served at her “pleasure” by being loyal to whatever vision she had for Liberia. That service to former President Sirleaf’s “pleasure power” under Article 56 by those appointed to the LACC, GAC, LRA and other agencies of the Liberian government is not and cannot be a constitutionally inheritable asset or liability by the current CDC-led government.
The existence of these public officials without sufficient political orientation understand the CDC-led Pro-Poor Political agenda has the potential to grossly undermine any major political reform agenda. Imagine having or retaining a cabinet minister or public official from a regime that is dubbed “three-time corrupt” than any government in memorable history. The presence of that public official will surely blemish the progressive introduction of new ideas in the way the CED-led Government will want to lead by example. The political definition of loyalty in the context of public service goes beyond the mere feeling of having a strong or allegiance to a cause or personality, it goes with the feeling of allegiance, faithfulness, obedience, and devotion. How those who have been on the other side of the political divide throwing muds at the vision of the CDC can suddenly become the drivers of the masses’ Pro-Poor political agenda, must be treated within the context of a ‘Trojan horse” , and discouraged unless it is a settled policy that the drive for political accommodation means gambling everything that the CDC stands for in terms of appointing its stalwarts who will defend its interests.
In summary, there is no tenure position within the contemplation of Article 56 of the 1986 Constitution. The power and authority of all those holding tenure positions ceased to exist as of the 22nd of January 2018 when the Appointing Power ended its tenure. The objective of having a tenured position is to avert any political harassment on the job during the lifespan of the appointing power. The Liberian legislature is without any constitutional authority to pass any law that inhibits or prohibits the enforcement or exercise of any constitutional provision unless amended consistent with the provisions of Article 91 of the 1986 Constitution which expressly states: “This Constitution may be amended whenever a proposal by either (1) two-thirds of the membership of both Houses of the Legislature or (2) a petition submitted to the Legislature, by not fewer than 10,000 citizens which receives the concurrence of two-thirds of the membership of both Houses of the Legislature, is ratified by two-thirds of the registered voters, voting in a referendum conducted by the Elections Commission not sooner than one year after the action of the Legislature.”
To suggest or entertain the idea of a tenure position as in the case of LACC, LRA, GAC and other agencies of the Liberian Government, is to hold the ill-fated belief that the legislative enactments creating these agencies automatically repealed or amended Article 56 of the 1986 Constitution which gives the President the pleasure power to administer “ other government officials, both military and civilian that have been appointed by him pursuant to tenets of the 1986 Constitution and shall hold their offices at his/her pleasure.